§ 3.6 p.m.
§ Order of the Day for the Second Reading read.
§ THE PARLIAMENTARY SECRETARY, MINISTRY OF WORKS (LORD MORRISON)
My Lords, the objects of the Bill are, first, to make legal aid and advice more readily available in Scotland for persons of small or moderate means, and, secondly, to provide for the establishment of a Law Society of Scotland which will include all practising solicitors. Part I of the Bill, which deals with legal aid and advice, does not differ in principle from the English Legal Aid and Advice Bill, which has already been given a Second Reading in your Lordships' House, but it has been drafted in sufficiently wide terms to ensure that the new arrangements will preserve the peculiar Scottish characteristics of the existing system. The representation of poor persons by counsel and solicitors in civil and criminal cases in Scotland has a long and honourable tradition dating back to Acts of the Scottish Parliament of the years 1424 and 1587. This tradition has gradually developed into a familiar and comprehensive system under which assistance in litigation is available in the Court of Session, in the High Court of Justiciary and in the sheriff courts.
The present arrangements for representation are that, as regards proceedings 980 in the Court of Session, the Faculty of Advocates nominate annually counsel for the poor, and the legal societies appoint solicitors to act as poor's agents. In the sheriff court agents for the poor are nominated annually by the local practitioners, and the sheriff has power to nominate if there are insufficient volunteers. There are at present no statutory income limits but, generally speaking, a person who wishes to avail himself of the poor's roll procedure must not have a weekly income in excess of £3 together with 12s. 6d. for each child or dependant. Under the present procedure an applicant goes to a solicitor on the poor's roll and states his case. The solicitor, in turn, obtains a certificate of means and refers the application to the reporters on probabilis causa, who are local practitioners. The reporters consider the application and, if they are satisfied, recommend to the sheriff that the applicant should be admitted to the benefit of the poor's roll. If the sheriff admits the application the case proceeds as a poor's case without fees being charged, but the poor litigant remains liable for solicitor's outlays. In criminal cases there is an agent for the poor in attendance at the court. In the sheriff court, if a poor person pleads not guilty, a solicitor and, if necessary, counsel are available for his defence, and in the High Court of Justiciary the services of counsel are always available.
When the Bill was considered in another place it was suggested that, while legislation is usually introduced with the expressed purpose of improving a particularly scandalous situation, no such claim could be made in support of the present Bill. It is true that the history of legal aid in Scotland reflects the utmost credit on the legal profession, and it would be ungenerous not to pay due acknowledgment to the extremely meritorious way in which counsel and solicitors have in the past made their services available in poor persons. The existing system, however, is subject to criticism in present-day conditions. First, the income limits are generally regarded as being too low. The cost of living has risen considerably, and wages have risen; and while more people are in need of legal aid fewer are eligible for it. Secondly, those who may be eligible for legal aid are still required to pay their solicitor's outlays and out-of-pocket expenses, such as the travelling 981 expenses of witnesses and the cost of copying documents, which may form a very substantial part of any bill of expenses. Thirdly, the litigant is always liable to have the expenses of the other side awarded against him if he loses the action, with the consequent possibility of being ruined financially. Fourthly, the absence of facilities for free legal representation in the smaller courts, such as the burgh court and the J.P. court, has long been felt to be a grievance.
In these circumstances, and in similar circumstances in England, a Committee on Legal Aid and Advice was set up under the chairmanship of Lord Rushcliffe in 1944, and their Report was published in May, 1945. A corresponding Scottish Committee was appointed in November, 1945, under the chairmanship of Mr. John Cameron, now Dean of the Faculty of Advocates, to consider the detailed recommendations of the Rushcliffe Committee and to frame a corresponding scheme for Scotland with the necessary modifications. The Cameron Committee reported in May, 1946, and the principles embodied in their Report have been accepted by the Government and are followed in this Bill. The general objects and scope of the Bill were the subject of confidential discussions between the Lord Advocate and representatives of the principal Scottish legal societies in the autumn of last year. Thereafter, when the Bill had been published, fuller discussions took place and the Bill has since been considerably amended in another place to meet such criticisms and objections as were put forward on behalf of the legal profession.
Part I provides for three forms of assistance, depending on the needs of the applicant, which will be made available under the Bill. The first of these is legal aid proper, that is to say, assistance in the conduct of litigation which under Clause 1 will be made available in the principal courts of law in Scotland. These courts are specified in the First Schedule of the Bill. Certain types of proceedings are, however, excepted meanwhile, for the practical reason that although the Bill represents an extension of the present system it is not possible at this stage to say how far the extension can be carried without overloading the profession. For this reason legal aid will not initially be available in the many tribunals of various 982 kinds, but there is power by the affirmative Resolution procedure to extend the scope of legal aid to cover both particular courts and particular types of action.
Clauses 2, 3 and 4 provide that legal aid shall be made available to those whose disposable income does not exceed £420 a year and whose disposable capital does not exceed £500. Clause 4 and the Second Schedule provide that in assessing a person's disposable income or capital deductions will be made for taxes, rates, rent and other items specified in the Bill. In the outcome, legal aid will be available to a substantially greater number of persons in Scotland than ever before. A person with a disposable income of less than £150 a year and a disposable capital of less than £75 will receive legal aid free of cost and will not be asked to contribute towards the expenses of the action. If his disposable income and capital exceed these sums he may be required to contribute towards the cost of the litigation, but his contribution will in no circumstances exceed half his income over £150 a year together with his excess capital over £75. The complicated business of assessing a person's means will be undertaken by the National Assistance Board. It is also provided in Clause 2(3) that an assisted litigant's liability for expenses awarded against him if he loses his action will be limited to the amount, if any, which in the opinion of the court is a reasonable one for him to pay.
The second facility provided by the Bill may be described as intermediate legal aid; that is, assistance in asserting or disputing a claim where the question of legal proceedings has not yet arisen. This is provided for in Clause 5. As the cost of this form of assistance will be appreciably less than the cost of legal aid in court actions a less complicated method of assessing means has been adopted, and the applicant will simply satisfy the solicitor that he comes within the financial scope of this particular type of legal aid. The third form of assistance, which is provided for in Clause 7, is legal advice. This will normally consist of such oral advice as can be given at a single interview, although the solicitor giving the advice will be able to provide a written note where he thinks such a course desirable. To qualify for this form of assistance the applicant will require to satisfy the solidi- 983 tor that he cannot afford to obtain professional advice in the normal way, and will pay a nominal fee of 2s. 6d.
These three forms of legal assistance will, under Clause 6, be provided by such advocates and solicitors who volunteer and who will have their names placed on the lists to be prepared for various districts. The assisted litigant will be free to select any solicitor and, where necessary, counsel from these lists. Counsel and solicitors will be remunerated for these services from the Legal Aid (Scotland) Fund, which will be financed from moneys provided by Parliament and from contributions by litigants. But in no case will the litigant be required to make any payment direct to the counsel or solicitor who acts for him. Clauses 8 to 11 provide for the preparation and administration of the scheme of legal aid and advice. As recommended by the Cameron Committee, this will be a matter for the legal profession itself, and the scheme will be drawn up by the Law Society in consultation with the Faculty of Advocates. The scheme will be subject to the approval of the Secretary of State, who will be the Minister responsible to Parliament for the provision of legal aid and for such expenditure from public funds as may be necessary. The scheme will provide for a Central Supervisory Committee consisting of representatives of the Law Society and the Faculty of Advocates, and representatives of the public who will be nominated by the Secretary of State. For expeditious local administration Scotland will be divided into a number of areas, and there will be local committees consisting of local practising solicitors in the more populous districts and local representatives elsewhere.
The operation of the scheme can best be illustrated by considering the course of an individual application for legal aid. The applicant will normally apply to the office of the local committee, where he will be shown the list of solicitors for his district. He will then inform the solicitor of his choice of the reason why he wishes to take proceedings and give a rough estimate of his means. If the case appears prima facie to come within the scope of the scheme, the solicitor will prepare an application and submit it to the local committee for their consideration. 984 If there appear to be reasonable grounds for taking proceedings, the local committee will refer the case to the National Assistance Board to assess the means of the applicant. If the applicant's disposable income and capital bring him within the scope of the scheme, the local committee will then assess his contribution, which will be either the sum needed to meet the expenses of the proceedings or the maximum contribution assessed by the National Assistance Board, whichever is the less, and will issue a legal aid certificate in his favour. The solicitor will then conduct the case to its conclusion, and, where necessary, the services of counsel and expert witnesses may be provided. If the assisted litigant wins the case, any expenses recovered will be paid into the Legal Aid Fund, and the assisted person will be entitled to any balance once the cost of the proceedings has been met. If the assisted litigant loses the case, however, his liability for the expenses of the other side will be limited to such sum as the court considers reasonable.
There will be a simple procedure for criminal cases where it is not possible to investigate means before the accused appears in court. In such cases the accused will be entitled to receive aid initially without examination of his financial resources. If he pleads not guilty he will be required to state his means and to apply for a legal aid certificate before further representation is authorised. If he pleads guilty a solicitor will be there to represent him.
As already indicated, the main responsibility for running the scheme will be left to the Law Society of Scotland which will be constituted under Part II of the Bill. This Part of the Bill, which provides for the establishment of the Law Society, reproduces with certain modifications the provisions of the Solicitors Amendment (Scotland) Bill which was introduced in your Lordships' House last Session by the noble and learned Lord, Lord Normand (who I hope will take part in the discussion following), but which, by agreement, was not proceeded with. There is at present no unified Law Society in Scotland, and the General Council of Solicitors, elected by existing legal societies in terms of the Solicitors (Scotland) Act, 1933, has no mandate to speak for the profession as a whole. The 985 lack of such a society has long been felt, and the new society will be welcome to lawyers and a convenience for consultative purposes to Government Departments and the public generally. There will be no restriction on membership, apart from the requirement to possess a practising certificate, which will be issued by the Society or, in the interim, by the Commissioners of Inland Revenue. The allegation that the Society will constitute a "closed shop" is met by the explanation that the only qualification required for membership is a professional one. Every solicitor will be required to have a practising certificate as a condition of engaging in practice and these certificates will in future be issued by the Society. I may add in parenthesis that practising certificates in England have been issued by the Law Society since 1932.
Clause 20 requires solicitors to keep separate bank accounts for clients' moneys, and ensures that a solicitor will not unknowingly use clients' moneys for business purposes. This is a useful provision which will provide for proper accounting and will also constitute a safeguard against peculation. The last clause in this Part of the Bill which need be specifically mentioned at this time, and perhaps one of the most important provisions, is Clause 22, which provides for the establishment of a Guarantee Fund to compensate persons who may suffer loss by reason of dishonesty on the part of any solicitor or a servant of his. A similar Guarantee Fund already exists in England, and the establishment of such a fund in Scotland, which has been voluntarily proposed by the profession, will be welcomed by the public. The Guarantee Fund, I am informed, will be entirely supported by annual contributions (probably of £5) from the profession. I do not think that I need add any more beyond commending this Bill as a useful and important measure which will do much to enhance the existing law of Scotland. I beg to move that this Bill be read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Morrison.)
§ 3.26 p.m.
§ LORD NORMAND
My Lords, the noble Lord who has just spoken on behalf of the Government referred to a Bill for the introduction of which I was 986 responsible about a year ago. That was a solicitors Bill, which was introduced by me at the request of the General Council of Solicitors in Scotland. I must acknowledge that Part II of this Bill now before the House is a great improvement on the Bill which I introduced. I am grateful to the Lord Advocate and to others who have co-operated in amending the provisions of the Bill which I proposed and presenting the present Bill in the improved form in which it now stands.
I do not think that that Part of the Bill has provoked any serious controversy in Scotland. There are a few dissidents, but I believe that all dissent will disappear and will be replaced by willing co-operation once the Bill is in operation and it is realised that the Bill preserves complete autonomy for the new Society which is to be established. That autonomy is preserved not only in the administration of the Society's affairs, in the regulation of questions of discipline and in the Guarantee Fund, to which the noble Lord referred, but even in the Society's very constitution, which is not to take final shape until all qualified solicitors in Scotland have had an opportunity of considering and debating the scheme to be put before then by the General Council. The method of procedure to be adopted will ensure that everybody who is interested will have an opportunity of being heard and of objecting to any part of the scheme to which he has a reasonable objection.
I believe that the Bill will solve in a most satisfactory way the difficult problem of constituting a Society of which all solicitors must be members. The need for a Society of this kind, comprehending the whole legal profession in Scotland practising as solicitors, was, I think, manifest some years ago. When I had the honour to be a Judge in the Court of Session, difficulties in the Division arose in correction and discipline proceedings which occasionally came before the Court because the General Council had no funds at their disposal with which to present these cases. There were other reasons which made it highly desirable that a Society which was comprehensive should be created, and with the introduction of a Bill providing for legal aid on the scale laid down in Part I of this Bill the creation of a uniform and all-comprehensive society of solicitors became inevitable. There could be no 987 satisfactory administration of Part I of this Bill without a Society such as that which is to be created under Part II.
I now turn very briefly to Part II. I shall not take up much of your Lordships' time because I shall be careful not to raise points which I know are going to be raised by other noble Lords, and particularly by my noble and learned friend Lord Reid who, when he was Lord Advocate, was concerned with the preliminary investigations which have led to the formation of the provisions of Part I. I know that many people have formed great expectations from the introduction of these measures of legal aid in England and Scotland, and I hope that all their expectations will be fulfilled. But it is also certain that they are attended with very great risks. The machinery set up by this Bill is by no means simple and easily worked. It may easily degenerate into a cumbersome and dilatory choking of the administration of justice. It may also greatly exceed the costs upon which the original estimates of the expenses involved in it were framed. What is more important even than that is that it may easily bring about a spirit of litigiousness, which is one of the greatest misfortunes from which any people can suffer.
I am thankful to see that certain forms of action are excluded from the scope of the Bill. I need mention only one—actions for defamation for verbal injury. It would be a great misfortune, I think, if the State were in any way to finance actions for defamation. It has been greatly to the credit of the Scottish people that defamation is a form of action which is very rare in that country—much rarer in proportion than it is in England. It was remarked as long ago as the end of the seventeenth century by Lord Stair, the great Lord President of the Court of Session, that "actions for defamation are much rarer with us than they are with the English." I think the reason at which he hinted was that Scots people were so confident of the good repute in which they stood that they could afford to ignore those who maliciously attacked them. Another good reason is that many Scotsmen believe that the surest way of damaging one's character is to raise an action for defamation, even if one is successful. At 988 any rate, I hope that nobody will ever suggest that the State should finance actions for defamation; nor, for that matter, for breach of promise of marriage, or for damages for the enticement of a spouse.
Another danger which is imminent in the Bill is the risk that the legal profession, by accepting in this shape some financial aid from the State, may sooner or later come to be subservient to, or dependent on, the State. That would indeed be the gravest peril of all. But I believe that these dangers, great as they are—and I think they are in no way prevented by the words of the Bill—can be prevented by the spirit in which it is administered. I believe it to be of the utmost importance, in the first place, that in framing the schemes which it will have to frame under the terms of the Bill for the administration of legal assistance, the legal profession should be allowed the utmost flexibility. After all, in Scotland we have had an experience of administering legal aid for 500 years, and we have nothing to learn about that, either from Governments or from any other country. If it is left to the legal profession of its own volition to carry out these duties under this scheme, there is far more likelihood of success and far more likelihood of dangers being avoided than if any busybody begins to put his fingers into pie.
The second point I would like to make about the administration is that it will call for the utmost vigilance on the part of the solicitors and members of the Faculty of Advocates who are concerned in it. If it is laxly administered the costs will soar, as we have recently seen with other affairs in this country; litigiousness will grow, and then there will be an outcry that the legal profession is failing in its duty and ought to be brought under some form of public control. Therefore, it is to the legal profession in Scotland, which has always responded to the call of duty ix this matter of legal aid for the poor, that I would address an appeal that they should co-operate in the administration of the measure vigorously and vigilantly in order to ensure success.
One of the problems which the Bill has had to face is a proper distribution of the rule-making powers between the court and the Executive. On the whole, I believe that a proper distribution has 989 been achieved, but I wish to call attention to one point of administration. There is cast upon the court the duty of making rules and keeping the rules abreast of the changes which will from time to time take place in the administration. When I went to the Chair of the Court of Session nearly fifteen years ago, I had little to do except judicial work and the internal administration of the affairs of the Court. But when the war came there were thrust upon me all the duties which the various Acts of Parliament passed in the emergency and afterwards brought upon the Lord Chancellor in England. And my task became one of the greatest difficulty, because I was equipped with no staff for carrying out these duties. Every rule that was framed had to be framed by the Lord President.
In the last three years, since I left the Court, these duties have been very much increased, and I know that the burden which falls upon the Lord President just now is almost unbearable. There is nobody in Scotland, or indeed anywhere else, more capable of bearing heavy burdens than Lord Cooper, and nobody more willing to spend himself to the utmost limit in the discharge of his duties. But there are cast upon the Lord President burdens which no single man ought to be asked to bear. Those burdens not only fall upon him personally, but they may in the long run seriously interfere with the efficiency of the judicial work of the Lord President. The judicial work of the Lord President ought to come first, and therefore I say that the time has come to assert here that the Lord President must be equipped with a proper staff, including draftsmen, to enable him to discharge the kind of duties which have been heaped upon him in the last fifteen years.
The staff of the Court of Session was cut down and altered in the year 1933, after a Royal Commission presided over by Lord Clyde. But at that time it was never thought that burdens of this kind which the Lord Chancellor discharges in England would be cast upon the Lord President. That is an innovation, and I appeal to the Lord Chancellor, who must himself know what the effect of this legislation has been on the work in his office, to consider how difficult it must be for a single individual, with no staff at all, efficiently to discharge all these duties and with them, the duty of con- 990 trolling the Court of Session and also the judicial work of the President of the Court of Appeal. The time has come to assert that the situation can go on no longer.
§ 3.40 p.m.
§ THE EARL OF SELKIRK
My Lords, every member of the legal profession in Scotland regrets very much that this measure cannot be acclaimed in the same language as that which greeted the Legal Aid and Advice Bill for England. But, in spite of the fact that criticism has been levelled, I know from conferences I have had with members of the legal profession that they are determined that such Bill as Parliament approves for making legal aid more readily available for people of moderate means shall receive their wholehearted co-operation.
I am certain that I can say that truthfully, but it would be false if I did not state fairly bluntly the objections which the legal profession feel towards the way in which this Bill has been presented. The first objection is in regard to the manner in which the Bill has been brought in. As the noble Lord, Lord Normand, has said, in Scotland we have had a system of legal aid for poor persons for nearly 500 years. Now what has happened in this case? The Rushcliffe Committee was appointed during the period of the war to investigate any improvements which might be made in this matter in England. Thereafter those with responsibility for Scottish affairs decided that the Rushcliffe Report and the recommendations in it would be brought into play in Scotland. They merely asked the Committee to examine how to apply the recommendations which had already been made in the Rushcliffe Report. If I may say so with great respect, it would hardly be natural if there was not resentment at that method of handling affairs. What in fact is happening? Whereas advantage might have been taken of much which is contained in our well established system and a great deal of it might have been accepted, it is proposed to introduce something which is still—again I say it with great respect—a theoretical system from another country. We feel that not sufficient attention has been drawn to what could have been applied from the existing structure.
It is not my business to criticise the Rushcliffe Report: obviously it is admir- 991 able for the purpose for which it was devised. But I think I should be failing in my duty if I did not point out that that Committee received evidence only from England. It did not trouble to make investigations in regard to what is done in other countries where official aid is available to poor people—such countries, for instance, as Sweden, Germany, Austria, Holland, Finland and Brazil. It may be that it would have been difficult to obtain evidence from those countries during the war, but such an argument could not be advanced in regard to Scotland: there evidence would certainly have been available. I feel that that constitutes a great objection so far as Scotland is concerned. Naturally, those people are inclined to resent the introduction of a new system which is still untried, to replace one which has operated for five centuries. Indeed, from a very early stage of our development, many of our institutions have been regarded by other countries as well worth imitating.
In this connection I will quote just a short passage from Sir Archibald Alison's History of Europe.The early precocity of Scotland in legislative wisdom, and the extraordinary provisions made by its native Parliament in remote periods, not only for the wellbeing of the people, but the coercion alike of regal tyranny and aristocratic oppression, and the instruction, relief and security of the poorer classes, is one of the remarkable facts in the whole history of modern Europe, and one well deserving of the special attention of historians and statesmen.The second point which concerns the legal profession in Scotland is that its independence, the very qualities of which Lord Normand has spoken, may in some way be undermined. The legal profession are frequently represented as grasping individuals who take everything they can. This Bill is undoubtedly going to be of assistance to many hardworking and worthy members of the legal profession, but they have not grasped at the opportunity which has been offered because it does appear that in some way their independence and their privileged position with their clients might—I deliberately say "might"—be in some measure undermined. It may be said that it is to their credit that they have opposed this Bill, or at least criticised it. because it has seemed to them that that essential relationship 992 with their clients may in some measure not be given full consideration.
If I may now come to more concrete considerations, I would like, as a first point, to stress that in all the representations made on this subject, equally in the Morton, the Rushclilie and the Cameron Reports, every recommendation has been that the administration of the scheme should be laid fairly on the legal profession. Lord Morrison has stated that the responsibility does lie on the Law Society of Scotland, but it is strange that in speaking of the parallel Bill for England the Lord Chancellor said that that Bill was no more than a peg on which he would hang regulations. Those were the Lord Chancellor's words. The peg on which regulations are being hung in Scotland is the Secretary of State for Scotland—not the Lord Advocate, not even a member of the profession, and not one who can know and understand the immense and powerful relationships which are bound up with the profession.
In the circumstances, it is very hard to see that what the noble Lord, Lord Morrison, claims has, in fact, been done. It really seems that responsibility for the administration rests entirely, or to a great extent, on the shoulders of the Secretary of State. If it can be shown that he is willing to forbear from using these regulations, so much the better, but we have no reason to suppose that that is going to be the case. I would like to press the noble Lord for an answer as to just what is meant by the word prescribed "as used in the term" prescribed in regulations." I feel that this is a Second Reading point, even if it is a rather small one. There are a great many different types of regulations. Could we have a statement or could we have any information whatever as to what is meant by that wording as it appears in the body of the Bill?
The second point relates to the National Assistance Board. It is very much regretted in Scotland that the Government should have taken this line for assessing means. We feel, from the point of view both of speed of action and confidence, that the established system of affidavits could very properly have been carried forward with such modification and after such further examination as may or may not be necessary. The argument advanced by 993 His Majesty's Government is that this is a method which will remove a stigma from, or, shall I say, raise the prestige of, an institution which was formerly associated with the Poor Law. No one could wish to continue the former situation, which many of us regret, but I think it is a pity that we should encourage people in this country to lean on the State or on the National Assistance Board, or to be associated with an organisation which is to assist them, rather than to stand independently on their own legs. I mention that because I am certain that if it were possible to accept in the first place a statement from the applicant for aid, it would make the scheme very much more readily acceptable in Scotland.
I will turn now to one or two specific clauses in the Bill. In Clause 1(6) there is a passage containing the words:may also be refused legal aid if it appears unreasonable that he should receive it…May I ask to whom it has to appear unreasonable? Can the noble Lord, Lord Morrison, give us any indication as to what is meant by "unreasonable" in that connection? If it means, in fact, that someone else is the real litigant, I understand the argument; but the words as stated in the clause appear to me to be far too wide if that is their only purpose.
Under Clause 2(5) it appears to me that, quite properly, certain personal articles cannot be taken into account. These include clothes, houses, furniture, tools and so forth. It goes on, however, to provide for what I think might be an invidious distinction, for it states:except in such cases and to such extent as may be prescribed.Parliament has laid down that diligence in execution will not proceed against tools of trade, wearing apparel and houses, but a departmental officer can alter that and these may be proceeded against. I ask the noble Lord to explain what he has in mind: Is it necessary to make that exception?
I would like to ask whether His Majesty's Government will not think again about Clause 6. It has been emphasised over and over again that clients are to be free to have the solicitor of their choice. It has been emphasised that that is an integral part of the Bill. But we are dealing with a Bill which affects people with incomes up to a gross 994 figure of £700 a year—and perhaps more—many of whom will have their own solicitor. Why should those who have their own solicitor be denied the use of their solicitor, even if he is not a legal member of the panel, or list, as it is called here? If a litigant in an action in which the client is permitted to be assisted desires a solicitor whose name is not on the list, he will have to go elsewhere. I should like to hear the noble Lord's arguments for this, because it clearly weakens what would otherwise be valuable assistance.
I think the noble Lord has rather underwritten the objection which at the present time is felt in Scotland to the whole system of lists as existing to-day. It is true that the noble Lord made no claim of unanimity or agreement on this Bill; and he was right, because there is no agreement. If I may read the figures recently taken in the Scottish Law Agents' Society on two questions directly germane to this point, the noble Lord will see that that is so. The Scottish Law Agents' Society consists of over three-quarters of the members of the solicitors' profession in Scotland—2,400 out of 2,800. Of that number, just over 1,300 replied to the questions. There were four questions, but I will refer to only two. The first was: "Do you approve of a system of lists provided in the Bill?"—to which 71 said "Yes," and 1,255 "No." That shows there is an overwhelming body of opinion against the provision of lists as in the Bill. The second question was: "Do you consider that the method of administration of legal aid should be left entirely to the profession?"—to which 1,275 answered "Yes," and 60 "No." The essence of this is that the legal profession would like to accept the full responsibility for what it is doing; and the Bill as at present drafted leaves very wide responsibility outside the profession. I urge the noble Lord to try to have the responsibility more closely narrowed on to the legal profession itself.
I should like to ask one question about Clause 8. It provides that one-third of the members of the central committee for administering the scheme are to be outside the legal profession. It does not say by whom they are to be nominated. Am Ito understand that any scheme prepared by the Law Society would be refused by the Secretary of 995 State unless the Secretary of State had the sole nomination of one-third of the members? If that is the case, why not put it in the Bill? Would it not be franker and more honest? Finally, I should like to ask whether the present rules in the operation of probabilis causa are to be continued and, if so, in what form. Are these to be similar to the rules of court as laid down at the present time, or are they to be drawn up on an entirely new basis? I shall he grateful if the noble Lord can give some indication of that. I should like particularly to ask whether the Lord Ordinary can remit a case back where it appears to him that the conclusions of the case go beyond the original one approved by the reporters—by that I mean the case of the assisted litigant who has attempted to push his case greatly beyond the original scope which he had in mind. I would repeat that I hope the noble Lord will endeavour, in the course of our discussions, to try to make this Bill acceptable in the fullest degree in Scotland, because the profession is only too anxious to approve and carry through its principles. But there are still features, as I have indicated, which are unpopular and which I regret could not have been put in a form readily acceptable by the profession.
§ 3.55 p.m.
My Lords, I think my noble friend Lord Selkirk has made a conciliatory speech, and I hope that in the later stages of the Bill he will receive the co-operation of the Government, because I know perfectly well with what apprehension the profession in Scotland view this Bill. If the Bill is to be put on the Statute Book we all want it to be a success. The Statute of 1424 has already been quoted and, with your Lordships' permission, I will read two lines from that Statute which you will readily understand, as they are in English—I do not know whether any Statutes were written in English in England at that date:And gif their bee onie pure creature for faulte of cunning, or dispenses, that cannot nor may not follow his cause, the King for the love of God sal ordaine the judge before whom the cause suld be determined to put wey and get a leill and wise Advocate to fallow sik pure creatures causes: and gif the, causes be obteined, the wrangeur saJ assyth 996 baith the partie skaithed, and Advocate's coastes of travel.That doctrine has been completely followed in the five and a quarter centuries that have elapsed since that time.
I have been familiar from my childhood with the relations of poor people with their solicitors and agents. I suppose that furth of Glasgow, and possibly Edinburgh, there is hardly any family in Scotland who have not already their own agent whom they familiarly consult and from whom they obtain Advice, either free or for such small matter as they are well and easily able to pay. In proof of this, I would remind you of the case of John Knight, who was a Negro slave brought to Scotland in 1772. And, learning there to read, in the year 1777 he took an action to regain his freedom. He was represented in that action in the Court of Session by John MacLaurin—later Lord Dreghorn—by Alexander Maconochie, who became Lord Meadow-bank, and by Henry Dundas, who became Lord Melville. This man had no money to gain, he had only his freedom. His case illustrates better than anything I have to say that during all these ages no man in Scotland has been debarred by reason of poverty from an action in any court.
I would like to join my noble friend Lord Selkirk in his attack on the means test in this Bill. I would far rather see those provisions modified, at any rate in the first instance. At the present time a poor person can secure legal aid by making a statutory declaration. And in the first instance, I believe that that would be quite sufficient to enable him to obtain the assistance he requires. In my view it would be a strange thing if the party to which the noble Lord, Lord Morrison, belongs, which has laboured so hard for so many years to abolish the means test in another direction, should reintroduce it where it is perhaps unnecessary, as in this particular case.
I greatly regret—and I do not think it is very courteous to Scotland—that it is the Cameron Committee which have been chiefly followed in this matter and that, as I believe, Sir George Morton's Committee have been completely disregarded. The present Bill—particularly Clauses 5, 6 and 7—appears to me to strike at the whole of the present system of legal aid for poor people in 997 Scotland. It will be very difficult if people have to go to a solicitor on a panel for certain matters and to their own family solicitor for others. I feel that something should be done to enable the poor people in Scotland to retain the system of going to their own family man of business for all the legal matters with which they may have to deal. The family solicitor knows them and their circumstances, and is far better able to advise them. In addition, there is a great advantage in his knowledge, in that it enables him to avoid wasting his own and their time.
Legal assistance is extended by this Bill to persons with incomes up to £420 a year. Friends of mine who have examined the definition in this Bill tell me that it is possible for a man to have an income of over £1,000 a year and still rank for assistance under the Bill. I believe that the people covered by the Bill comprise a large proportion of the inhabitants of Scotland. I would like my noble friend Lord Morrison to look into this matter, having regard to the fact that legal expenses in Scotland are so much lower than they are in England. It seems to me that a Bill of this kind, which will cover the largest proportion of the population in Scotland—or may do so—should be very carefully considered. If we are to have a planned economy this Bill is rather difficult to understand. So far as I can see, litigation will be much more costly, and far more people will be employed in that business, especially if every man has to have two solicitors. It will also he costly in solicitors' time, and in the numbers of personnel employed. I think that side of the matter should be carefully considered. Having regard to the fact that in Scotland for all this time nobody has ever suffered lack of legal aid by reason of poverty, it looks a little as if the Government, wishing to make a great gesture, have swept away the old system and produced this new one much in the same way as they might have told us that they would make us a present of the air we breathe. To us, legal aid has been as easily obtained and as common as the air we breathe, and it seems to me that in substituting another system for that we already have we should be careful to make quite sure that we have the support of the profession behind us and that the new system really will work.
§ 4.6 p.m.
§ LORD REID
My Lords, there is no doubt that when this Bill was originally introduced it was the subject of a great deal of opposition in Scotland. Everyone must now admit that the Bill has been greatly improved since its introduction. But in Scotland there is still considerable opposition, much doubt and a good deal of misunderstanding. Therefore, I trust your Lordships will permit me to take up rather more of your time on this matter than I would otherwise feel entitled to. I believe that everyone in Scotland feels it is unfortunate that this Bill requires us, in effect, to abandon a system which has stood us in such good stead for so long. In my view, we can fairly say that for many generations no man in Scotland accused on a serious charge has gone undefended and no man has been unable on account of poverty to put forward a good case. This has meant a heavy and growing burden on the legal profession, which burden has been willingly borne as a form of public service.
However, we have now to re-examine the matter. The reason that convinces me that it is impossible to continue the present system, without, at least, such extensive amendment as amounts to the introduction of a new one, is this. In this Bill the Government propose that legal aid should be made available to persons of moderate means as well as to poor persons. In recent times so little has been done—I say this in no spirit of controversy, as it applies to us all—on behalf of persons of moderate means, in comparison with that which has been done for poor persons, that I could not find it in my heart to object to the extension of this assistance to persons of moderate means. If that is to be accepted, it will create a wholly impossible burden unless there is assistance from public funds. Such assistance necessarily implies supervision, and the first question one must ask oneself in considering what would be the best scheme is: Who is to carry out that supervision? There are only two possibilities—namely, a Government Department, on the one hand, or the profession itself, on the other. If the time ever came when close supervision were to be undertaken by any Government Department, under any Government, then I fear that the independence of the profession and, therefore, the supremacy of the law in this country would be in such serious 999 danger that such a system, whatever its advantages, ought to be ruled out at once.
I recognise that in this Bill a great deal has been done to avoid direct interference by any Government Department and to ensure, to the maximum extent, that supervision shall take place by the profession itself. But that means that the profession must have the means to exercise that supervision, and whatever one may think in ordinary circumstances about the introduction of a comprehensive new Society to include all practising solicitors, I feel that in present circumstances there is really no alternative, because, without such a comprehensive Society, supervision by the profession of this or any other scheme of the kind would be so difficult and might prove so ineffective that one might be driven back on the unfortunate alternative. Therefore, I would ask any of those in Scotland who still oppose the constitution of this new comprehensive Society to reconsider their attitude, and to realise that all the objections which they have in mind are really much less important than the objection which would undoubtedly apply if no such Society existed.
The second general point which I would like to make, following my noble and learned friend Lord Normand, is that the scheme must be flexible. I have frequently expressed my dislike of doing by rules and regulations what ought to be done by Act of Parliament, but if ever there was a case for extending the sphere of rules and regulations it is in this Bill. But that leads at once to the question: Who is to make the rules and regulations? Purely professional regulations can properly be and have been left to the profession, but I am sure that we all recognise that where regulations involve questions of public importance or large sums of public money, any Government must have some say in their making. What form is that to take? It has been suggested that more regulations might be made by the Lord President of the Court of Session. I do not desire to add anything, but I wish to express my agreement with everything which has been said by my noble and learned friend on the duties which are already heaped upon him. But there is one reason, above all others, which would prevent additional duties of this 1000 character being put upon the Lord President of the Court of Session, and that is that he would not be entitled to defend himself in public if he made a regulation which provoked public controversy and, therefore, he ought not to be asked to make regulations of that character.
This Bill provides that such regulations are to be made by the Secretary of State. I agree with a great deal which has been said by the noble Earl, Lord Selkirk, on the question, but I would be prepared to accept the Secretary of State on one understanding—that is, that the position of the Lord Advocate is appreciated in this matter. Your Lordships will know that the Lord Advocate is not merely a Law Officer. He is in no sense subordinate as a Minister to the Secretary of State. He is one of the few survivors of the great Officers of State of Scotland, and he occupies an independent position in the Government. If this Bill is to work properly, it is essential that the Secretary of State should enter into the fullest consultation with the Lord Advocate before he attempts to make any regulations which may affect the administration of justice. It is essential—and I am sure nobody knows that better than the present Lord Advocate—that he should undertake the fullest responsibility for any regulations which may be made. Whatever may be the formal division of responsibility among His Majesty's Ministers, there is no doubt that real responsibility will be held, and will properly be held, to lie on the Lord Advocate for all regulations made under this Bill which affect the administration of justice in Scotland. I feel confident that he and his successors will adequately discharge that responsibility.
I do not think it would be useful to enter into any criticism of the main lines of the Bill. It may be that some other scheme would have worked equally well or even better, but I do not think, at this time, that one can well go back on the main lines of the Bill. Nor, I think, would it be useful to enter into controversies again about the earlier history of this measure, or what has happened during its passage to your Lordships' House. I feel that good can and, indeed, will come out of this Bill if the provisions are worked harmoniously and if its administration is attended by reasonable good fortune. I think it is reasonable to ask that everyone shall work to that effect.
1001 I would like to take up a few more minutes, however, in dealing with some points which perhaps are more properly Committee points, but it may be that I shall save the time of your Lordships in Committee if I give a brief outline of what I have in mind at this moment. The first point which I would like to stress again is the complex structure of the administration under the Bill. We shall be dealing with people who are not always able to express themselves clearly; who are not always reasonable, but who will expect from this Bill legal assistance to the full. It will require a great deal of care in working out the details of any schemes to ensure that they work at all well. It will require the greatest possible care to be sure that the scheme will work with adequate speed. The delays of the law are proverbial, but to-day they are much more proverbial than real; and I fear that one of the difficulties about this scheme is that the administration of justive may be gravely slowed up where assisted persons are involved unless the greatest care is taken to ensure that everything is done as speedily as is consistent with good workmanship.
In this connection, I would like to say a word about the proposed panel of solicitors. I also would very much prefer that there should not be those panels, but I can see practical difficulties, and those who dislike panels have not hitherto convinced me that panels, lists, or whatever they are called, can be avoided. I think the Bill is sufficiently flexible, but if, as time goes on, it proves practicable to avoid maintaining lists, that might be done. There is one difficulty which impresses me, however, and I think I should state it. The man who wants legal assistance will not know a solicitor, and he will know nothing about the law. Somebody will have to tell him to whom to go. The Bill preserves freedom of choice, and it is right that it should. In many cases those who wish will be able to make a choice, because they will know to whom they will be able to go but in the majority of cases I venture to think that the person who desires assistance will not have any idea whom he would like to employ, and therefore someone will have to tell him to whom to go; and if there is no list it will be an extremely difficult and invidious task to advise a person whom he should consult. I can see favouritism being sug 1002 gested; one solicitor will say "Why was this man sent to me?" Another will say "How is it that I am being overlooked?" I have not yet seen how the practical working out of the scheme can be assured if there are not lists from which a man might be advised to whom he should apply. That does not necessarily exclude, of course, that a person who is already a client of a solicitor should be allowed to employ that solicitor within the scheme. I think that that matter might be examined again, or at least that the door might be kept open for that plan to be adopted as part of a scheme once it is under way.
One matter which I believe is under consideration might, I think, relieve the apprehensions of those who fear the list system to a considerable extent. I do not see why a solicitor, when going on the list, should undertake that he will deal with cases of every possible character that might arise. The experience and aptitude of solicitors, as of other people, vary very much. Some solicitors may have great experience and great aptitude for one class of case; others for another. There is no reason why a solicitor who is willing to undertake work of a family trust character should have to undertake the defence of accused persons; nor why a solicitor who is familiar with and willing to undertake divorce cases should also have to undertake heavy cases of a technical character with which he is unfamiliar. Accordingly, there is room, I think, for different lists for different purposes. If that is done, I think it will remove some at least of the apprehensions of those who fear the consequences of going on to one of these lists.
The second matter to which I wish to refer is the contribution which, under this Bill, will be asked from the assisted person. I think there is a good deal of misapprehension about this. A great many people think they are going to receive something very like free advice and free assistance. I think they will have a shock when they find how heavy the contribution may be. If it is to be based on half of a man's disposable income, above a disposable income of £3 a week, and on the which of his personal property over £75 of capital, some people who at present think this scheme will do them a lot of good will find themselves mistaken. I hope that no one in com- 1003 mending this scheme will represent that it amounts to free, or anything like free, assistance for persons of moderate means. Of course, I acquit anyone who has hitherto commended the Bill of saying that. I believe the public response will greatly depend on how this matter is worked out. Perhaps when we come to the Committee stage it will be appropriate to deal with the matter in a litle more detail.
There is one other point, which I think has not received the attention it deserves, and which seems to me to be of much importance; and that is the question of expenses. To begin with, I think people will get the idea that under this scheme once their maximum contribution has been assessed that is all they will have to pay. I understand that that is not so. If such a man loses his case, the court may require him to pay by way of expenses such sum as the court thinks reasonable. Therefore, what is assessed at the beginning is not the maximum liability under which the man may come.
But what I want to ask your Lordships to consider for a moment is the position of the other litigant, the man against whom the assisted litigant is fighting, who may be little better off financially than the assisted litigant. What is his position? If he wins he receives an award of expenses, but he gets only such sum as the court thinks reasonable. I do not think he gets even the sum which the Legal Aid Fund has already taken from the assisted person. I think he should. I think that if a person is, in effect, financed by public money to litigate against another, and that other person is successful, then that other person's claim to expenses should be preferred to the Treasury's claim to the contribution for legal aid. I hope to raise that matter again on Committee stage. And if that other person loses, what then? Why should he not have the same advantage as the disadvantage he suffers if he wins? If the assisted person is to be required to pay only what the court thinks reasonable, why should the unassisted person be required to pay more? Here, it seems to me, what is sauce for the goose is sauce for the gander. If there is to be a rule of this kind—and I do not object to it—it should be a rule which should apply equally to both sides; and there 1004 again I hope to raise this matter again at a later stage.
I should like to say only one other thing. However this Bill is framed, by reason of the large amount of public money which is to be spent in the administration of this scheme the independence of the legal profession is bound to be endangered. I am sure everyone agrees that it would be disastrous if anything occurred to impair that independence, but the danger will not be averted by verbal Amendments to this Bill. It is inherent in any scheme of the kind and it can be averted only by constant vigilance on the part of all concerned, and in particular on the part of solicitors and advocates in Scotland. I believe that Scotsmen, being much as they ever were, will show that vigilance and will be successful. But if they are not then the result of this Bill will be so disastrous as far to outweigh any benefits which it confers. I think it right to draw your Lordships' attention to that matter, while at the same time expressing my confiddence that the danger will in fact be averted.
§ 4.29 p.m.
§ LORD MORRISON
My Lords, if I may open on the same note as that on which the noble Lord ended his speech, I would say that, so far as I am able to understand the matter, it will take a much stronger Bill than this to undermine the sturdy independence of the Scottish people. It will not be as easy as that. I must confess that I have been agreeably surprised at the reception accorded by your Lordships to this Bill. About a fortnight ago, when I was in Scotland, I spent some time in reading the Scottish Press, and I observed some startling headlines about speeches of a leading member of the Scottish Law Agents' Society, I think it was. He used some rather strong language—language which is seldom used in your Lordships' House and will, I hope, never be used here about this Bill.
The report quoted a statement referring to the Bill as "unscrupulous mendacity." From that the speaker worked himself up to a series of extraordinarily extravagant statements, and finished up by saying:It is perfectly clear from this Bill that what Scotland has now to decide upon is 1005 whether we are going to have Karl Marx or Jesus Christ.My native land, since I left it, I thought, seemed to be becoming a nation of extremists when we heard language like that. So, when I come to your Lordships' House and hear the reasoned debate and the helpful and constructive suggestions which have been made to-day, I am agreeably surprised. I need not remind your Lordships that this Bill comes to us from another place. Nor need I remind your Lordships of the state of political tension that exists between the Parties in another place, which is almost unknown here. And yet, making allowance for that political tension in another place, this Bill passed through its Second Reading and Third Reading there without any Division being taken. That feeling has 'been borne out that, while many objections have been raised to the Bill, the objections are Committee points and are not fundamental.
It is obvious that I shall not be able to cover all the points that have been made, but I will endeavour to answer some of them. I would ask noble Lords to allow any other points to remain over to a later stage. In particular, I am sure that the noble and learned Lord, Lord Reid, knows quite well that I am not possessed of that intimate knowledge of the Scottish courts and Scottish law procedure which he has, But his points will be noted, and I can assure him that the Government would welcome consultations with him concerning the points he contemplates raising at a later stage of the Bill. I will, however, endeavour to answer at once at least one of his points. As I understood it, he suggested that under the Bill solicitors should not be required to enter their names on the lists for all purposes. I am advised that this is already covered by the provisions of Clause 6(1), which provides that there may be different lists for different purposes.
The noble and learned Lord, Lord Normand, who informed me that he had another important appointment and could not remain, raised something to which I want to reply, even in his absence—that is, the difficulties of the Lord President. The Secretary of State and the Lord Advocate are aware of the difficulty which the Lord President has in dealing with 1006 his existing staff with the growing volume of administrative business which he has to transact. Informal arrangements already exist to provide him with some assistance, but my right honourable friends agree that more adequate provision is required. Additional drafting staff has recently been recruited by the Lord Advocate's Department. It is hoped that, when the necessary period of training has been completed, arrangements satisfactory to the Lord President may be made for placing at his disposal the assistance which he undoubtedly requires in the preparation of Statutory Instruments and other documents.
The noble Earl, Lord Selkirk (who probably speaks on behalf of the whole of the legal profession Scotland) made a statement which I am sure we all welcome—namely, that in whatever form this Bill ultimately reaches the Statute Book he is sure that the members of the profession will join wholeheartedly in working the Bill when it becomes an Act. He went on to ask rile more questions than I can possibly answer—which is not an unusual experience for me when dealing with Scottish Bills. However, I will try to answer one particular point, which he regarded as important; the others can wait. The noble Earl, Lord Selkirk, and the noble and learned Lord, Lord Reid, asked "Who will make: these regulations?" The regulations under the Scottish Bill fall to be made (a) by the court, and (b), in certain cases involving finance and responsibility to Parliament, by the Secretary of State. I would remind noble Lords that under the English Bill, the regulations are made by the Lord Chancellor, who is both a Judge and a Minister.
§ THE EARL OF SELKIRK
May I ask this question? Is there somebody other than the Secretary of State who can also make regulations? If so, who is that person? The noble Lord has said that the court makes some regulations and the Secretary of State makes others. Does he mean that there is a third category?
§ LORD MORRISON
No. Obviously the regulations for which the Secretary of State is responsible must be the financial ones. I would add that the Secretary of State's regulations will be subject to either an affirmative or a negative Resolution of Parliament, so that the matters in them can be raised. The noble Earl 1007 then asked me, who will decide whether it is unreasonable that a person should receive legal aid? I am advised that the answer to that is to be found in Clause 1(6). It will be for the local committee of the Law Society to decide whether it is unreasonable that a person should receive legal aid. Although the applicant has a probabilis causa. it might be clear that his object in seeking to litigate is vexatious, and there must be some safeguard against that.
The noble Earl raised the question of tools of trade and wearing apparel. He will find that under Clause 2(5) the assisted person's wearing apparel and household furniture will be left out of account, except in cases prescribed by regulations made by the Secretary of State—not by a Departmental official—and subject to negative Resolution by both Houses of Parliament, as I have already said. This power is required to cover the case—which will, I think, admittedly be unusual, but one never knows—where an assistant litigant possesses unusually valuable items (say, a number of fur coats) which it would be fair to take into account. It is to deal with unusual cases of that kind.
That would not cover valuable tools of trade, would it? That is a very important point.
§ LORD MORRISON
Wearing apparel and workmen's tools. The noble Lord, Lord Saltoun, and other noble Lords mentioned the question of what they called the "means test." On this point I should like to say this, although we shall probably have an opportunity of going into the matter in more detail at another stage. The sheriff court's inquiry into means, under the Sheriff Courts (Scotland) Act, 1907, used to be carried out by the inspector of poor of the parish. That office was abolished under the National Assistance Act, 1948. Since then, an affidavit has been accepted purely as an interim measure pending, the passage of the present Bill. An affidavit is at present accepted in the Court of Session but the main point that I am making now—as I say, we may have to return to it on Committee stage—is that 1008 the number of persons who are at present eligible for legal aid is very much smaller than the number who will be eligible under the Bill. That is why it has been considered necessary to bring in some organisation to assess means. I understand that the National Assistance Board have expressed their willingness to undertake this work, and I think they will do it efficiently. If my noble friend will forgive my leaving the matter there, perhaps we may go into it more fully later.
As the House has yet another Scottish Bill with which to deal before we finish our labours for the week, may I conclude by saying that between now and the next stages of the Bill I should welcome further discussions with noble Lords, particularly those who have special knowledge—indeed, most of them have greater knowledge than I have on this subject. I have had no indication that noble Lords are going to resist the Second Reading of the Bill, and therefore I ask with confidence that it be given a Second Reading.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.